P. v. Hernandez

Filed 9/8/06 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

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On March 22, 2001, in case No. F01658720-8 appellant, David Luis Hernandez, pled no contest as part of a negotiated plea to unlawful possession of a firearm (count 1/Pen. Code, § 12021, subd. (e)),^[1] obliterating the identification of a firearm (count 2/§ 12090), unlawful possession of ammunition (count 3/§ 12316, subd. (b)(1)), and possession of a firearm in violation of a probation condition (count 4/§ 12021, subd. (d)). Hernandez also admitted allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). The plea agreement also provided that the court would strike the prior strike conviction. On July 16, 2001, the court struck the prior strike conviction, stayed a two-year term, and placed Hernandez on probation for five years.

On September 9, 2004, in case No. F04600816-3, a jury convicted appellant of attempted second degree robbery (count 1/§ 211) and assault with a deadly weapon (count 2/§ 245, subd. (a)(1)) and found true a great bodily injury enhancement (§ 12022.7) in count 2. In a separate proceeding the court found true allegations that Hernandez had a prior conviction within the meaning of the three strikes law. On September 10, 2004, the court revoked Hernandez's probation in case No. F01658720-8 based on his convictions in case No. F04600816-3.

On December 2, 2004, the court sentenced Hernandez to an aggregate term of nine years in both cases as follows: the middle term of three years on his assault conviction in case No. F04600816-3, doubled to six years because of his prior strike conviction, a three-year great bodily injury enhancement, a concurrent six-year term on his attempted robbery conviction in that case, and concurrent two-year terms on each of his four convictions in case No. F01658720-8. On appeal, Hernandez contends: 1) the evidence is insufficient to support the court's finding in case No. F04600816-3 that he had a prior conviction within the meaning of the three strikes law; 2) the court erred by its failure to stay the term it imposed on his robbery conviction in count 1 of case No. F04600816-3; 3) the court erred in imposing a restitution fine and a parole revocation fine in case No. F01658720-8; and 4) the court erred in its award of presentence custody credit in both cases. We will find merit to Hernandez's last three contentions and modify the judgment accordingly. In all other respects, we will affirm.

FACTS

Case No. F01658720-8

On December 19, 2000, officers conducted a probation search in a room Hernandez shared with his brother and found gang paraphernalia, ammunition, and a .22-caliber pistol with the serial numbers removed.

Case No. F04600816-3

On June 5, 2004, at approximately 10:15 p.m. Hernandez and four other people approached Alejandro Alcantar and a friend as they rode their bicycles home. Hernandez then hit Alcantar on the head with a can or a beer bottle causing a cut on Alcantar's head that required 11 staples to close. After Hernandez struck Alcantar, other members of Hernandez's group continued hitting him and took his bicycle and a bicycle belonging to Alcantar's friend.

Hernandez's Juvenile Assault Adjudication

Hernandez's prior strike conviction was based on his 1998 juvenile adjudication for assault in violation of section 245, subdivision (a)(1). The probation report for this adjudication indicates that on October 1, 1998, at approximately 7:09 p.m. Hernandez and another gang member approached a male juvenile outside a video store in Orange Cove and began to hit him with clubs for no reason. Hernandez and his confederate then chased the victim who fell when the confederate hit him again with a club. Hernandez and his confederate ran from the scene when a patrolling deputy yelled at them.

DISCUSSION

The Prior Strike Conviction Allegations

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